by Bill Mears
The Supreme Court announced Monday it is staying out of the same-sex marriage debate — at least for now — rejecting requests from five states to immediately review their bans that prohibit gay and lesbian couples from civil wedlock.
The rejected appeals originated from same-sex couples in Utah, Oklahoma, Virginia, Wisconsin, and Indiana.
With Monday’s order, lower appeals court rulings striking down the bans could soon be enforced in those five states. That also means bans in all the other states covered by the three circuit appeals courts would also be invalidated. Those states include West Virginia, North Carolina, South Carolina, Kansas, Colorado, and Wyoming. Same-sex marriage would then be permitted in 30 states.
The announcement signals the high court is taking a go-slow approach to the controversial social issue still percolating in the lower courts.
The brief order from the justices denying review of pending appeals came as a surprise to many advocates on both sides of the debate. Many had wanted the court to jump in now and offer a definitive, binding ruling on key constitutional questions.
At issue is whether homosexuals in all 50 states have the same equal protection or due process right to marry that opposite-sex couples have.
This denial of judicial review may be just a temporary move. Four federal appeals courts in recent months have struck down state bans on same-sex marriage, but the issue continues to be debated in other courts nationwide. The justices may wait until more lower court rulings are issued, to give them a fuller picture of the legal boundaries posed by same-sex marriage.
Legal and political experts fully expect the high court to eventually decide the core constitutional questions, but that may not happen for several months at least. Same-sex marriage is currently banned in 31 states.
The issue has been pushed quickly to the nation’s highest court, with the justices being asked to offer a definitive and binding ruling.
“The question of whether same-sex marriage bans are constitutional is a historic issue, under the Constitution and for the Roberts Court,” said Thomas Goldstein, publisher of SCOTUSblog.com and a respected Washington attorney. “It’s hard to imagine a situation where judges are going to have more power to define the social and family relationships of the country.”
Same-sex marriage is legal in the District of Columbia and 19 U.S states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
A Supreme Court ruling on the constitutionality of same-sex marriage would essentially end a patchwork of state laws — some that allow it, some that prohibit it, and a few that allow protections short of marriage, such as civil unions and domestic partnerships.
Marriage equality supporters cheered the high court’s Monday order.
“Today’s decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country,” said Evan Wolfson, president of Freedom to Marry. “But we are one country, with one Constitution, and the court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places.”
The Supreme Court hurried to schedule the appeals from the five states for its closed-door conference, even before all the legal briefs had been filed. But the justices offered no explanation of why they are not ready to resolve the issue.
Some conservative activists say this bench should slow down and ultimately stay out.
“When the court on such an issue — where there are very strong opinions on both sides, and a huge issue of social change in our country — steps in and makes it into a constitutional issue, it makes the justices look significantly more political in the eyes of the American people,” said Carrie Severino, chief counsel of the Judicial Crisis Network. “It would cast doubt on the legitimacy of the court … by imposing one type of solution for the entire nation, instead of leaving it in the hands of the states to decide how they want to address this issue.”
Many supporters of “traditional” marriage privately say preserving an inflexible one-man/one-woman definition of wedlock nationwide would not be realistic moving forward, and that a divided bloc of states upholding the status quo may be the best possible scenario. But all that hinges on what the Supreme Court does and does not do.
A federal appeals court in August took just nine days after intensive oral arguments to issue its sweeping conclusion that voter-approved same-sex marriage bans in Indiana and Wisconsin were unacceptably discriminatory. And state leaders then took just five days to formally ask the Supreme Court to intervene.
Even Justice Ruth Bader Ginsburg recently hinted a “Why wait?” attitude may predominate.
“I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” she told The Associated Press in July, referring to interracial marriage, which was not struck down by the high court until 1967. “If a case is properly before the court, they will take it.”
It takes just four of the nine justices to put such petitions on the docket — but five, of course, to ultimately prevail on the merits.
State and federal judges in the past year have ruled 39 times in favor of the expanded marriage right, while two have upheld existing laws. All this follows what the Supreme Court in 2013 said peripherally on the issue.
Fifteen months ago, the justices cleared the way for same-sex marriages in California to resume after it ruled private parties did not have “standing” to defend a voter-approved ballot measure barring gay and lesbian couples from state-sanctioned wedlock.
More importantly, the high court also rejected parts of the federal Defense of Marriage Act in its 5-4 “Windsor” decision, citing equal protection guarantees to conclude same-sex spouses legally married in a state may receive federal benefits, such as tax breaks.
That federal question now morphs into the higher-stakes state jurisdiction, where marriage laws have traditionally been controlled, and where the equal protection issues will ultimately be resolved.
By CNN’s count, various individuals and gay rights groups have launched more than 80 pending marriage equality lawsuits in all 31 states with current bans. A Supreme Court review would put all that litigation on hold.
However, the nine justices had complete discretion to stand on the sidelines for now and wait for a majority of these state battles to play out, or for a federal appeals court to uphold a ban.